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Fox v. Passaic General Hospital

Decided: July 9, 1976.


For affirmance -- Chief Justice Hughes, Justices Sullivan and Pashman and Judge Conford. For reversal -- Justices Mountain, Clifford and Schreiber. The opinion of the Court was delivered by Conford, P.J.A.D., Temporarily Assigned. Clifford, J. (dissenting). Justice Mountain and Schreiber authorize me to say that they join in this dissent.


[71 NJ Page 123] We are called upon here further to refine the application of the so-called

"discovery" rule to the defense of statute of limitations in medical malpractice and similar actions. See Lopez v. Swyer, 62 N.J. 267 (1973); Moran v. Napolitano and Bellavia, 71 N.J. 133 (1976) argued and decided simultaneously herewith.

Succinctly stated, does a plaintiff who discovers the existence of a malpractice cause of action prior to the expiration of a period of two years after the defendant's actionable conduct necessarily have a full two years after such discovery to bring the action? Or, if the action is not brought within two years of the actionable conduct, is it barred if not brought within "a reasonable time" after discovery of the existence of the cause of action? The trial judge in this case answered the first stated question in the negative and the second in the affirmative and dismissed plaintiff's action by entry of summary judgment in favor of defendants. By a divided vote the Appellate Division reversed. The case is here by virtue of the dissent in the Appellate Division. R. 2:2-1(a)(2).

The factual background of this case is fully set forth in the majority and dissenting opinions in the Appellate Division. See 135 N.J. Super. 108 at 109, 113. For present purposes the facts may be summarized as follows. Plaintiff sustained an abdominal operation at the defendant hospital on October 26, 1970. A drain was left in the incision. Because of discomfort after discharge from the hospital plaintiff was readmitted thereto on November 17, 1970, when an abscess was drained by the operating surgeon and another drain inserted in the incision. The second drain was removed in December 1970, plaintiff still complaining of abdominal pain. On February 22, 1971 an x-ray examination at another hospital disclosed a foreign object in plaintiff's abdomen, and the original drain, left there in October 1970, was removed by surgical operation performed March 2, 1971.

Plaintiff brought a malpractice action against the operating surgeon in March 1971 and settled her claim against

him thereafter. She brought the present action against the defendant hospital and the defendant nurses December 1, 1972, charging them with negligence in her post-operative care and treatment in connection with the original surgery.

The trial court, in dismissing the action because brought more than two years after the alleged actionable conduct of defendants, construed our decision in Lopez v. Swyer, supra, to permit a plaintiff the benefit of the discovery rule only when it was "equitable" to do so, and it found plaintiff was not entitled to the protection of the rule here because "she had better than a year and a half [after discovery] in which to do something and she did absolutely nothing". In agreeing with that determination the dissenting judge in the Appellate Division expressed the view that a plaintiff should be allowed only "a reasonable time" after discovery to bring his action if otherwise beyond two years after the actionable conduct, not "automatically * * * the same period of time afforded by the statutory period of limitation." 135 N.J. Super. 116. She found persuasive a concurring opinion to the same effect in Rothman v. Silber, 90 N.J. Super. 22, 36 (App. Div.), certif. den. 46 N.J. 538 (1966). The majority in the Appellate Division, however, applied literally the rule as enunciated in our per curiam affirmance and modification in Yerzy v. Levine, 57 N.J. 234, 235 (1970), where we stated the question before us was "whether plaintiff brought this action within two years after plaintiff knew or had reason to know that plaintiff might have a basis for a claim against the defendant * * *."

Subject to the following comments, we are in essential agreement with the rule as understood and applied by the Appellate Division majority in this case.

In our view, the principles governing administration of the discovery rule should be as simple and uncomplicated as is consistent with the achievement of justice for both claimants and defendants in this area. We reaffirm the views expressed in Lopez v. Swyer, supra, calling for an equitable approach to the question of the bar of limitations

when discovery by plaintiff of the cause of action is delayed and an action is begun more than two years after the actionable occurrence. 62 N.J. at 275. But we see no utility in a rule which would add to the difficulties already faced by a trial judge in determining, under Lopez, the date of "discovery" of the cause of action by the plaintiffs, the task of resolving in every case the "reasonableness" vel non of the time left for the commencement of an action between the date of discovery and the expiration of the two years from the actionable occurrence. It is convenient as well as logical to take the position that since the cause of action does not accrue until discovery thereof, under the rationale of the discovery principle, Fernandi v. Strully, 35 N.J. 434, 450 (1961), the plaintiff should normally have the benefit of the legislative policy determination that he may institute his ...

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